For Women Scotland Judicial Review 2

[Signalbox]

For Women Scotland Judicial Review: mentioned today in the Times. I didn't realise that this was happening this week on 9th and 10th November according to FWS website...

forwomen.scot/01/09/2022/impact-of-second-judicial-review/

We have a petition for judicial review pending, averring that this revised guidance is not compliant with the court’s decision and is therefore unlawful. The Scottish Government has repeated its earlier error in law by incorporating transsexuals living as women (albeit now restricted to those who hold a GRC) into the definition of woman, thus conflating and confusing two protected characteristics. The Scottish Government has declined to remove the section referring to the GRA and have indicated that it is their understanding that a GRC changes a person’s sex for the purposes of the Equality Act. Whether they believe a person’s biological sex changes on receipt of a GRC or whether they now dispute that the Equality Act refers to biological sex remains to be seen.

Permission has been granted for the judicial review and the substantive hearing date has been set for 9th and 10th November 2022.

We believe this case puts the Committee in a very difficult position as, until such time as the court makes a ruling, the proper relationship between the GRA and the Equality Act cannot be understood, and nor can the consequences of any legislative reform of the GRA.

If the Scottish Government is correct that a person’s sex changes in the Equality Act with a GRC then it follows that the statement to Committee by Cabinet Secretary, Shona Robison, that the GRR Bill “does not redefine what a man or a woman is”, is incorrect. Clearly, if men who hold a GRC (transwomen) are included in the definition of woman (and women who hold a GRC (transmen) are excluded), then changing the circumstances under which a person is entitled to a GRC will also have the effect of changing the definition of woman.

The GRR Bill proposes a significant change to the eligibility criteria for a GRC and will include, for the first time, those without a medical diagnosis of gender dysphoria and those aged 16 and 17. The Scottish Government also estimates a tenfold increase in applications for a GRC. This diversification and expansion of GRC holders from the current situation will significantly change who is counted under the definition of woman.

Whether a person is defined as a man or a woman matters for the successful operation of the Equality Act across a broad range of provisions, including single-sex exceptions, equal pay claims and access to maternity rights, and we are concerned that this is underappreciated and poorly understood by the Scottish Government. It is, of course, vitally important because any action taken by the Scottish Parliament must be careful not to modify any of the protected characteristics, including the definition of woman, lest it strays into reserved matters.

The Scottish Government seems hopelessly confused and inconsistent when it comes to the definition of woman, with at least three different definitions currently in operation across various pieces of legislation and policy. Contrary to the position outlined above, it fully understood that sex was biological when SNP MSPs voted in favour of the Lamont amendment to substitute gender with sex in the Forensic Medical Services (Victims of Sexual Offences) Bill to ensure a request for a female medical examiner resulted in the provision of exactly that, and not a man with a GRC (transwoman).

At the other extreme, the Cabinet Secretary again contradicted the Scottish Government’s current position by asserting a GRC is not required for a man to fall under the definition of woman and access single-sex services for that sex, when she said to Parliament that “the 2010 Act does not apply exceptions specifically to toilets and changing rooms. Trans people can and do use those now, whether they have a GRC or not, and they have been using them for many years.” This fails to recognise the single-sex mandates in legislation relating to schools and workplaces as well as specific examples in the Equality Act Explanatory Notes – we have written separately to you about this matter.

A recent Scottish Government public consultation on the Review of Funding and Commissioning of Violence Against Women and Girls Services redefined a woman as “anyone who defines themselves as a woman”. Not only does this circular statement flagrantly disregard the Inner House ruling but it fails to recognise funding for women’s services can only be allocated via positive action measures in s158 of the Equality Act so must adhere to the protected characteristics. Our letters to both the review group and the Scottish Ministers asking for the consultation to be withdrawn and reissued with a correction have not received any response. We further note the Scottish Government only accepts applications for funding from individual women’s services on production of a LBTI inclusion policy that is transwomen inclusive. Again, this is not dependent on holding a GRC.

In summary, we believe the revised statutory guidance for the Gender Representation on Public Boards Act is unlawful. The Scottish Government believe otherwise and maintain a GRC changes a person’s sex for the purposes of the Equality Act. Not only does this decouple women’s biological sex from sex-specific provisions in the Equality Act, but it means reforming the GRA also carries a serious risk of intruding on reserved matters. The Scottish Government has a history of inconsistency and lack of understanding on both the definition of woman and the operation of the Equality Act. All of this leaves the Committee exposed, trying to make good law in the midst of a live court action, the outcome of which materially affects the reform.

This is an important point I think. Many spaces aren't policed. On the whole they rely on the integrity of the service users to use the appropriate space. The whole thing with the SG's plans is that it gives male people the impression that they are entitled to use whatever spaces they want to. It's going to be really hard to reverse the harm that they've done. I can't see it happening unless the laws are completely unambiguous going forwards.

@ tribunal tweets

twitter.com/tribunaltweets/status/1590355198417178626

AN: the wording was used to specifically used to over the Bellinger case. The Government were recommended to allow gender to mean sex. They did not agree to that.
AN: The suggested approach is that there isn't any inconsistency in the Equality Act wrt the GRA.

There is - it punches holes in that.
AN: If they were correct and the PC of sex and the definition of man and woman were changed, it would make the GRA nonsensical - as has been noted on a number of occasions [cites case]. Substituting biologial sex for gender would mean that a

woman who was breastfeeding but had a GRC would be excluded from protections for women
AN: The EA is the law which deals specifically with discrimination [sound goes]...pension rights. There is no provision which mentions a GRC meaning that you can claim sex discrimination in

your acquired sex rather than your biological sex
J: except that with a GRC you are said to have changed sex
AN: and round and round we go.

AN: My colleague has just pointed out: there is one passing mention in the GRA regarding marriage. There may be one more, in terms with

marriage and celebrants that perform marriages.

J: so that's an exception? That might argue against you
AN: sex was always used in ref to marriage because of Bellinger.
J: so this would be an exception
AN: yes. But gender recognition does not change sex in the EA.

AN: Talking about legal sex, which was created in the minds of the makers of the EHRC. A GRC allows you to change your birth certificate but nothing changes about yourself - your biological sex. It's not about changing sex. It doesn't create a 'legal sex' which the other side is

trying to say
AN: what has changed is what the certificate is telling people about you. It is just a certificate with different information on
J: does it look like a standard birth certificate? Would anyone know the difference?
AN: I suspect not. They want to keep the GRC

private for some reason
J: If someone was presented with a birth cert, it would look the same?
AN: after a GRC it's a short form birth certificate but would say M or F...I think
AN: sex remains a biological fact but the cert says something else.
J: it's very difficult. If someone

sees a birth cert - the person presenting the cert doesn't actually change sex. But the cert looks as if they have
J: this is a shorthand?
AN: On the other sides reading of SSS then this covers people of the bio sex and those with a GRC. In a hospital a pregnant woman with a GRC would they be sent to a male ward?

AN: the idea that this cert changes everything, is wrong. The cert don't give you gender reassignment protection - you can have that anyway. The cert doesn't matter.

J: The PC of gender reassignment covers the whole process - living as the acquired sex

AN: there is no need for any change in appearance or surgery or anything at all for one to be covered by the gender reassignment protected characteristic. Whereas the original docs were set out with the idea of surgery etc. You now don't need proof of gender reassignment (surgery).

J: sorry for interrupting you - I hope I haven't put you off track

AN: The EHRC say it's within the right of a sovereign government to make their own laws. But this still doesn't actually change a person's sex. People who were medically diagnosed with

gender dysphoria are able to apply for the certificate - this shows that this person has the protected characteristic of gender reassignment. However this doesn't give this person protections under sex discrimination.
AN: The GRA relies on the EA - but the other side say it also

relies on previous enactments
AN: If we look at some of the legislation which on reading against me - we then have the problems with reading in legal sex instead of bio sex which was intended. For eg the abortion act - this is a provision which refers in terms to women

[Reads details of Abortion Act - AN emphasises the words 'pregnant woman']. As we've seen on the EHRC that would not cover Freddie McConnell as he is considered to be a man.

J: sticking with Freddie McConnell. He was pregnant. If he had sought a termination of the pregnancy - you say that these provisions wouldn't apply to him

AN: No, that's what the other side would say.
AN: On my reading - you can't get pregnant men. You can get pregnant women who get a GRC but they are biological women. The other side that they are a pregnant man.

J: you say that the absurdity in the respondent's approach this construction would exclude the women with a GRC. Could one do the same with the GRA - read into it in different ways.

AN: you do have read into these. If there is a nonsensical reading then a reading down would make sense

What I'm saying is that their absolutist reading of the act means that there are circumstances like the pregnant women example
AN: The surrogacy act wouldn't apply to a woman with a GRC. There is a prohibition of placing a foetus into a woman in some circumstances.

By their reading this wouldn't apply to a woman with a GRC because it would be placing a foetus into a man.
AN: more recently - there has been some issue about whether women have the right to be forensically examined only by another woman. In the 2021 act regarding this,

gender has been changed to say sex. In the EHRC the victim's rights to a ss exam would be upheld even if she was examined by a man with a GRC. In this case sex absolutely means biological sex. The EHRC and the Scot Gov dispute this. It's not only absurd, it's obscene

AN: The GRC does not change a person's sex. For other statues it does not. The guidance which Scot Gov has produced is unlawful. The GRA is of it's time in 2004 when there was no ss marriage but things have moved on. It has an effect to state's records; pensions, social security,

gender has been changed to say sex. In the EHRC the victim's rights to a ss exam would be upheld even if she was examined by a man with a GRC. In this case sex absolutely means biological sex. The EHRC and the Scot Gov dispute this. It's not only absurd, it's obscene

Quite, I hope the Judge makes sure that the SG responds to this.

Last tweet...

inheritance etc. The workable reading of the act is that woman mean bio woman, man means bio man. Those are my submissions - sorry for over-running
J: not at all. It's been a very interesting discussion
AN: could I 'bank' the rest of the time for a later time
J: well we'll see

SG must be up next. Can't wait.

Yes, interesting to see the impacts on FtM transitioners of legal changes driven by MtF ones. And the "tom boys are still girls" point about language was excellent.

Looks like the SG discussion with the Judge starts here...

twitter.com/tribunaltweets/status/1590367447961722880

@ tribunaltweets

twitter.com/tribunaltweets/status/1590367447961722880

AN: Can't blame me for trying!
J: God loves a trier!
J: We will continue
J and SGLD discuss docs
RB (respondent's barrister): [missed] the court said that woman in 2018 act is the same as in the EA - female of any age.

RB: this brings into context the problems with this. I will address those points in detail but first..this case is about the lawfulness of statutory guidance re appointments. What if a person was to come with a birth cert, either from birth or from GRC? What is someone asked that

person to provide evidence of being a woman. Those people might well produce a certificate. Would they be acting unlawfully? AN says they would not be able to have provisions under the EA. I say that they would be. The certs provided would say they were female. This is about the

2018 act but I will refer to EA too. What this isn't about, is the process of getting a GRC whether that should be made harder or easier. It is not about the bill which has been introduced to Scot parliament or the debates about the bill. This is about the effect

of a GRC once the changes are made to the GRA. This isn't about trans-inclusive spaces - about whether they are lawful or a good idea. It's not about whether GRC should be easier or harder. It's not about confusing or undermining the PC of sex orientation

That PC remains whatever sex that person is or whatever sex they are attracted to. They are not to be discriminated as such. Whether it's opp sex, same sex or both sexes. It's not afforded to the object of that person's attraction

This is not about taking away rights. Those who share the relevant PCs will have the protections afforded to them. Just to pick up the intervention from LGBA - this is not about those who made assault or predate or harrass women. The criminal law responds to such unlawful acts

The inner houses was not asked to say what was meant by woman in the EA. It was not asked to say whether a person who has a GRC is a woman. It was asked to determine if the definition of woman was beyond legislative competence and executive competence.

[Missed]
RB: In inner house's opinion once can surmise that it would not have related to reserved matters were Scot Gov to legislate to [missed] a woman being appointed to public boards. The inner house petition 'woman' would include those with a GRC in acquired gender of a woman as well as bio women

J: this is helpful context
RB: my understanding is that there is no challenge to the act itself
J: AN is nodding
RB: It might be useful to look at FWS inventory

The court recognised that it was not deciding if a person with the acquired female gender under the GRA was a woman according to the 2018 act.
J: it's clear that it was not the focus of the discussion
RB: the court said nothing about 'woman' not including those with acquired gender of women with a GRC

RB: Re: FPFW in outer house. [cites] In answer to the sex question includes those with a GRC. Re: Inner House there is a sentence which says 'we don't think the question 'what is your sex' means what is on your birth certificate or your GRC.

Re the census they didn't think it should be combined
J: it was synonymous?
RB: It does certainly point to in FWS they were not determining what AN says they were determining
J: It's almost 4pm so I think this is a good time to break. We will start again tomorrow at 10am

END

Thanks Signalbox.

No worries :)

Thank you so much Signal Box.

Fascinating

And the argument about transmen losing rights is salient. The Equality Act maternity part is completely about women. So GRC takes away their rights if they have the legal fiction of "male".

I would suspect, if you did down into this, that the SG's and the TQ+ political lobby's response to this is in essence that someone with a GRC can use all the protections and identities based on which circumstances suit them at the time: they can be all things at once and there need be no barriers.

Females who need same sex care and spaces are afforded no such flexibility or generosity.

It is and has always been a case of heads TQ+ people win and tails biologically female people lose. Identifying as this not harming female rights and equality of access is I'm afraid not going to cut it.

Can anyone explain the EHRCs position on this? They recently published guidance saying it was perfectly legal to have single sex spaces for females from which transwomen were excluded which clearly acknowledges that transwomen are male sex not female sex. But now they’re saying that a GRC changes the holders sex for the purpose of the EqA. I am completely confused.

I can't wrap my head around it either. I just keep going round in circles. The two positions are completely inconsistent.

it was perfectly legal to have single sex spaces for females from which transwomen were excluded which clearly acknowledges that transwomen are male sex not female sex. But now they’re saying that a GRC changes the holders sex for the purpose of the EqA.

Yeah. It's bullshit.

It has been from the start.

Badly planned, badly made and poorly thought out law, heavily driven by a political lobby with a very fixed personal investment, and absolutely no interest in the equality or civil rights of anyone but themselves.

This is going to be most of chapter one of the manual for 'why we never, ever fuck up when making law' for government in about 20 years time.

The other thing is that the SG are always arguing that the GR reforms are just an admin exercise and a GRC doesn’t change anything in relation to the EA. This just flies in the face of that argument doesn’t it?

From the horse’s mouth…

"What the bill seeks to do or will seek to do is simplify an existing process. It doesn’t confer any new rights on trans people, nor does it change any of the existing protections in the Equality Act, so it doesn’t change the current position on data collection or the ability of sports organisations to take decisions, for example.”

www.holyrood.com/news/view,nicola-sturgeon-questions-equality-watchdog-intervention-in-trans-law-reform-debate

I'm not sure if it is actually the EHRC or the Scottish Human Rights Commission. Would be good to have it confirmed.

Definitely the EHRC.

THIS GROUNDBREAKING BILL CHANGES NOTHIN

To be fair to the EHRC I think proper clarification is needed from Parliament. Either a GRC changes the sex of the person for EA purposes or it doesn’t. AFAIK that info isn’t explicitly stated in either the GRA or EA, and there has been no ruling by the Supreme Court. Parliament is the rightful place for such a huge thing to be decided.

And considering how very badly under represented women are in parliament, and how very significant this is in impact on the rights of one half of the population, it should be the focus of a referendum. At the very least, clearly within a manifesto. There has been absolutely every attempt to avoid democracy getting anywhere near this mess.

And yes Nic. We know you identify as this not affecting anything.

WE CAN HUV ANOTHER REFERENDUM. AHM FOND O A REFERENDUM.